News
Constitutional Law
Feb. 20, 2002
Held Accountable
Forum Column - By Terry Francke - What difference would it make if Californians had a constitutional right of access to meetings of state and local officials and to the information that they control? That's what people ask increasingly as they learn about Senate Constitutional Amendment 7, a bill introduced Jan. 10 by Senate President Pro Tempore John Burton, D-San Francisco.
Forum Column
By Terry Francke
What difference would it make if Californians had a constitutional right of access to meetings of state and local officials and to the information that they control? That's what people ask increasingly as they learn about Senate Constitutional Amendment 7, a bill introduced Jan. 10 by Senate President Pro Tempore John Burton, D-San Francisco.
Amendment 7 is legislation that would place a state constitutional amendment on the November ballot. To get there, the bill will have to pass both the Senate and Assembly by a two-thirds majority. Once on the ballot, the amendment would need only a simple majority of voter approval.
The sponsors, the California First Amendment Coalition and the California Newspaper Publishers Association, say that the need for a constitutional basis for sunshine in government has been accelerating over the last decade or so, compounded by the following developments:
• Court decisions expanding exemptions from disclosure. A recent case extended "law enforcement" confidentiality even to basic information about traffic stops. Haynie v. Superior Court of Los Angeles County, 26 Cal.4th 1061 (2001).
Another decision held that the law-enforcement exemption never wanes, even if no harm would result. Williams v. Superior Court of San Bernardino County, 5 Cal.4th 337 (1993).
Officials can withhold information shedding light on the development of their policy decisions. Times Mirror Co. v. Superior Court of Sacramento County, 53 Cal.3d 1325 (1991).
Virtually any business channeled by a government agency through its lawyers, including information from and about a contracting party, is free from exposure. STI Outdoor v. Superior Court of Los Angeles County, B148102 (Cal. App. 2d Dist. Aug. 2, 2001).
Meanwhile, on the open meeting side, courts have concluded that local councils and boards can use closed sessions to set performance goals for their chief executives. Duval v. Board of Trs. of the Coalinga-Huron Unified Sch. Dist., F035238 (Cal. App. 5th Dist. Nov. 8, 2001).
In a Brown Act suit alleging unlawful discussions or decisions in closed session, the plaintiff cannot take discovery against members of the defendant body to learn anything about what was said or done - essentially depriving the plaintiff of any direct evidence to use in enforcing the law. Kleitman v. Superior Court of Santa Clara County, 74 Cal.App.4th 1231 (6th Dist. 1999).
• Actual practices that take more than full advantage of dubious readings of the law. While a school board cannot bring favored citizens into closed session to help pick a new superintendent, it can achieve the same effect by appointing a select citizens' advisory committee. The committee then can hold its own closed sessions to interview candidates and make confidential recommendations. Op. Atty. Gen. 97-414 (1997).
Local councils and boards use the Brown Act's authorized closed session to confer on real property negotiations so sweepingly that they successfully resisted a recent legislative effort to narrow it to information not known to the other bargaining party. AB1050 (Kenoe) (2001).
A city attorney told colleagues and city leaders at a conference not long ago that one would be "amazed" at how many issues can be characterized as affecting real property, for purposes of inclusion in closed session. Ted Rohrlich, "Law Requiring Open Meetings Often Ignored," L.A. Times, Dec. 13, 1998.
The city of Claremont denies public access to credit-card statements showing whom the city manager hosts for meals, citing the "deliberative process" privilege. See Times Mirror Co.
In connection with the Insurance Department controversy that led to the resignation of Commissioner Charles Quackenbush, a state senator's efforts over months to obtain Insurance Department records under the California Public Records Act led to nothing but stonewalling. As a result, a joint legislative staff task force concluded that the act had been "interpreted, reinterpreted and fiddled with to the point that it has become of little appreciable value to the public."
Two years later, a Senate committee investigating related concerns was so stymied for relevant records that a department attorney had to risk her job and license to practice law in providing the committee with documentation, withheld by her superiors, showing probable misconduct by insurance companies. Virginia Ellis, "Bill Proposes Protections for State Lawyers," L.A. Times, Feb. 22, 2001.
• Governors who, irrespective of party, veto broadly supported reform legislation. Former Gov. Pete Wilson and incumbent Gray Davis vetoed a series of three attempts to improve public access to records held in electronic form. Davis finally signed a fourth try. AB2799 (2001). Davis vetoed two successive efforts to allow the attorney general to review, with nonbinding effect, public agencies' denials of access to records. SB48 (Sher) (1999); SB2027 (Sher)(2000).
Accordingly, Amendment 7 would in effect allow court challenges at two levels. Statutes could be challenged on their face for protecting some interest not falling within a handful of broad categories given approval for confidential treatment.
These exemption zones conspicuously include personal privacy, except to the extent that information relates to a person's qualifications or fitness for public office. Other confidential areas include private property, the preservation of public funds and resources, public safety and the fair and effective administration of justice.
The sponsors expect that these interests would be found to undergird most secrecy provisions now on the books. For example, the chief argument for governmental assertion of the attorney-client privilege as a basis for Brown Act and California Public Record Act exemptions has always been protection of the public treasury, governmental funds and resources from exposure to litigation by adversaries informed by overreaching access laws.
The second new check on over-expansive secrecy would be at the administrative level. Governmental bodies would have to justify closed sessions and exemptions from disclosure of public records (other than those grounded in personal privacy) not only by an assertedly applicable statute but by, in effect, a detailed explanation of the harm that unavoidably would result from public access. The bill would require access restrictions to be narrowly tailored in terms of breadth and duration.
These justifications are patterned on the requirements imposed on courts under the First Amendment and common law to justify closure of criminal or civil proceedings (Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); NBC Subsidiary v. Superior Court, 20 Cal.4th 1178 (1999)) or denial of access to judicial records (Estate of Hearst v. Lubinski, 67 Cal.App.3d 777 (2d Dist. 1977)).
Thus, the proposed amendment would add no new substantive or procedural burdens to individual judges' control of their courtrooms - although it could provide an arguable basis for access to the housekeeping records of a court system or the meetings of an appointed administrative body in the judicial branch, which, up to now, operate with essentially no guarantee of public access.
Niceties apart, the most succinct and pungent rationale for the measure is found in the recent observation by Burton himself: "I think the burden should be on the agencies to explain why they keep this stuff secret."
Further information on Amendment 7 is available at www.cfac.org/sca7.html.
Terry Francke is general counsel for the California First Amendment Coalition. "First Light" is a monthly column by coalition members.
By Terry Francke
What difference would it make if Californians had a constitutional right of access to meetings of state and local officials and to the information that they control? That's what people ask increasingly as they learn about Senate Constitutional Amendment 7, a bill introduced Jan. 10 by Senate President Pro Tempore John Burton, D-San Francisco.
Amendment 7 is legislation that would place a state constitutional amendment on the November ballot. To get there, the bill will have to pass both the Senate and Assembly by a two-thirds majority. Once on the ballot, the amendment would need only a simple majority of voter approval.
The sponsors, the California First Amendment Coalition and the California Newspaper Publishers Association, say that the need for a constitutional basis for sunshine in government has been accelerating over the last decade or so, compounded by the following developments:
• Court decisions expanding exemptions from disclosure. A recent case extended "law enforcement" confidentiality even to basic information about traffic stops. Haynie v. Superior Court of Los Angeles County, 26 Cal.4th 1061 (2001).
Another decision held that the law-enforcement exemption never wanes, even if no harm would result. Williams v. Superior Court of San Bernardino County, 5 Cal.4th 337 (1993).
Officials can withhold information shedding light on the development of their policy decisions. Times Mirror Co. v. Superior Court of Sacramento County, 53 Cal.3d 1325 (1991).
Virtually any business channeled by a government agency through its lawyers, including information from and about a contracting party, is free from exposure. STI Outdoor v. Superior Court of Los Angeles County, B148102 (Cal. App. 2d Dist. Aug. 2, 2001).
Meanwhile, on the open meeting side, courts have concluded that local councils and boards can use closed sessions to set performance goals for their chief executives. Duval v. Board of Trs. of the Coalinga-Huron Unified Sch. Dist., F035238 (Cal. App. 5th Dist. Nov. 8, 2001).
In a Brown Act suit alleging unlawful discussions or decisions in closed session, the plaintiff cannot take discovery against members of the defendant body to learn anything about what was said or done - essentially depriving the plaintiff of any direct evidence to use in enforcing the law. Kleitman v. Superior Court of Santa Clara County, 74 Cal.App.4th 1231 (6th Dist. 1999).
• Actual practices that take more than full advantage of dubious readings of the law. While a school board cannot bring favored citizens into closed session to help pick a new superintendent, it can achieve the same effect by appointing a select citizens' advisory committee. The committee then can hold its own closed sessions to interview candidates and make confidential recommendations. Op. Atty. Gen. 97-414 (1997).
Local councils and boards use the Brown Act's authorized closed session to confer on real property negotiations so sweepingly that they successfully resisted a recent legislative effort to narrow it to information not known to the other bargaining party. AB1050 (Kenoe) (2001).
A city attorney told colleagues and city leaders at a conference not long ago that one would be "amazed" at how many issues can be characterized as affecting real property, for purposes of inclusion in closed session. Ted Rohrlich, "Law Requiring Open Meetings Often Ignored," L.A. Times, Dec. 13, 1998.
The city of Claremont denies public access to credit-card statements showing whom the city manager hosts for meals, citing the "deliberative process" privilege. See Times Mirror Co.
In connection with the Insurance Department controversy that led to the resignation of Commissioner Charles Quackenbush, a state senator's efforts over months to obtain Insurance Department records under the California Public Records Act led to nothing but stonewalling. As a result, a joint legislative staff task force concluded that the act had been "interpreted, reinterpreted and fiddled with to the point that it has become of little appreciable value to the public."
Two years later, a Senate committee investigating related concerns was so stymied for relevant records that a department attorney had to risk her job and license to practice law in providing the committee with documentation, withheld by her superiors, showing probable misconduct by insurance companies. Virginia Ellis, "Bill Proposes Protections for State Lawyers," L.A. Times, Feb. 22, 2001.
• Governors who, irrespective of party, veto broadly supported reform legislation. Former Gov. Pete Wilson and incumbent Gray Davis vetoed a series of three attempts to improve public access to records held in electronic form. Davis finally signed a fourth try. AB2799 (2001). Davis vetoed two successive efforts to allow the attorney general to review, with nonbinding effect, public agencies' denials of access to records. SB48 (Sher) (1999); SB2027 (Sher)(2000).
Accordingly, Amendment 7 would in effect allow court challenges at two levels. Statutes could be challenged on their face for protecting some interest not falling within a handful of broad categories given approval for confidential treatment.
These exemption zones conspicuously include personal privacy, except to the extent that information relates to a person's qualifications or fitness for public office. Other confidential areas include private property, the preservation of public funds and resources, public safety and the fair and effective administration of justice.
The sponsors expect that these interests would be found to undergird most secrecy provisions now on the books. For example, the chief argument for governmental assertion of the attorney-client privilege as a basis for Brown Act and California Public Record Act exemptions has always been protection of the public treasury, governmental funds and resources from exposure to litigation by adversaries informed by overreaching access laws.
The second new check on over-expansive secrecy would be at the administrative level. Governmental bodies would have to justify closed sessions and exemptions from disclosure of public records (other than those grounded in personal privacy) not only by an assertedly applicable statute but by, in effect, a detailed explanation of the harm that unavoidably would result from public access. The bill would require access restrictions to be narrowly tailored in terms of breadth and duration.
These justifications are patterned on the requirements imposed on courts under the First Amendment and common law to justify closure of criminal or civil proceedings (Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); NBC Subsidiary v. Superior Court, 20 Cal.4th 1178 (1999)) or denial of access to judicial records (Estate of Hearst v. Lubinski, 67 Cal.App.3d 777 (2d Dist. 1977)).
Thus, the proposed amendment would add no new substantive or procedural burdens to individual judges' control of their courtrooms - although it could provide an arguable basis for access to the housekeeping records of a court system or the meetings of an appointed administrative body in the judicial branch, which, up to now, operate with essentially no guarantee of public access.
Niceties apart, the most succinct and pungent rationale for the measure is found in the recent observation by Burton himself: "I think the burden should be on the agencies to explain why they keep this stuff secret."
Further information on Amendment 7 is available at www.cfac.org/sca7.html.
Terry Francke is general counsel for the California First Amendment Coalition. "First Light" is a monthly column by coalition members.
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